Carlisle Patriot, 11 Mar 1826 - Cumberland Lent Assizes (24)

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Saturday 11 Mar 1826   (p. 2, col. 6 - p. 3, col. 6; and p. 4, col. 1-3)

 

CUMBERLAND LENT ASSIZES, 1926.

 

[continued]

 

NISI PRIUS.

 

BLACKLOCK v. MORLEY.

 

Mrs. Mary Ann BLACKLOCK, of Cumwhitton, was the plaintiff, and Mr. John MORLEY, of Corby, the defendant. The declaration stated that he had broken and entered into a close belonging to the plaintiff, and committed a trespass. The defendant pleaded a highway: this highway was denied by the plaintiff; and hereupon issue was joined.

 

Mr. ALDERSON addressed the Jury for the plaintiff.—The case, Gentlemen, will ultimately resolve itself into one of fact. I shall occupy but little of your attention at present, because I know that the whole of the issue will depend upon my learned friend on the other side (Mr. COURTENAY). We complain of the plaintiff's [sic] trespassing over five closes. He says he did not do it. Secondly, he says he has a right to go there, and because the hedges stood in his way, he broke them down as he in such case lawfully might. I answer that he has no right; consequently he could not legally break down our fences; and this I shall fully establish. The fields in question, Gentlemen, are part of the manor of Cumwhitton, which was inclosed under act of Parliament, and the commissioners made their award in 1801. At the time of the award, there was no public way reserved over these grounds. It will be for the defendant to show how the public have obtained a right of way since; and therefore you will be called upon to say whether certain acts of usor—certain acts of trespass I shall call them—are sufficient to establish the right claimed. Perhaps it will be asked by my learned friend why the parties said to have trespassed were not prosecuted against at the time—why they were not proceeded against at the Sessions, and thus bring the question to a settlement? Gentlemen, if public rights could be got by the neglect of parties bringing actions for trespass, there are few estates where such claims might not be set up. Is a man to bring an action against every person he finds on his property? A hedge, or a fence, or a gate, may be pulled down by an individual not worth a shilling, by a pauper; and in that case, I apprehend, it would be much wiser for a proprietor to repair the damage, and say nothing at all about it, than to proceed at law, and have all the expenses to pay. To establish the right claimed, it must be shewn that the plaintiff has consented. Without that, nothing can be done. And so far from it, I shall show that my client has set up fences and even notices at both ends of the alleged public way, that no such right existed.

 

The inclosure act and award were put in,—the former dated 1796; the latter, 1801.

 

Mr. COURTENAY.—I admit that the premises are allotments under this act. I also admit that there was no public way at the time of passing the act.

 

Isaac SNOWDEN.—I have been servant with Mrs. Mary Ann BLACKLOCK, the occupier of five closes at Cumwhitton. A road goes across to Corby from Brocklewath. My mistress occupies the land on each side of the road; and the land was part of the common of Cumwhitton. I have seen Mr. MORLEY often go across this road, all the way down the five closes. I have seen him pull the thorns out of the hedge where the mill-beck is. I have seen him also cross the old lands with a cart, going to his farm between my mistress's house and what was the common. In 1822-3, I lived with James BLACKLOCK, the late husband of the present occupier.

 

Cross-examined by Mr. COURTENAY.—There was a foot-path across these lands before the award in 1801. He never saw any stiles there after the inclosure: there might be gaps, but there were no stiles. The fences set up were often pulled down. The cart of the defendant spoken of was going down the old land, from his own house, towards some customary land which he occupied, but he could not tell the exact time.

 

Geo. RICHARDSON was in the service of Mr. William BLACKLOCK, father-in-law of the plaintiff, 16 years ago. During that time, he put up printed papers at each end of the path claimed, desiring people not to go over the land on the Low Common; and they were knocked down, posts and all, in a week. The same notice was also put up at the church door. One Sunday morning he was set to watch to find out who it was that trespassed; and he turned back Mr. MORLEY and a man named HALL—and all persons whom he saw going that way were ordered to turn back. The fences were knocked down at night; but Mr. BLACKLOCK could never find out who did it.

 

RICHARDSON was cross-examined by Mr. AGLIONBY. Having made a slip of the tongue, he exclaimed, "Don't let me tell a lie, Sir" (laughter) Mr. AGLIONBY: "I'm sure I don't want you to tell a lie." Witness: "Nay, but I winna do't; ye are not going to persuade me to that." (laughter).

 

Wm PENRITH occupied the land now in possession of Mrs. BLACKLOCK, in 1809. The Low-Common, between the road and Corby, was fenced, and there were neither stiles nor gaps, but an appearance of a foot-path. In 1811, his father fenced it up between the road and the field. I afterwards (said the witness) saw John MORLEY, the defendant pass along, but he avoided the place in dispute: it was on Sunday, and he was going to church. I turned back several persons in 1811—John NEWTON, and John SHARPE; and when so turned back, no one persisted.

 

Cross-examined, he said SHARPE lived at Corby; NEWTON, at Cumwhitton, and was a labourer. He could not tell how many years together the road was open.

 

John BROWN was present in 1809, when James BLACKLOCK, (plaintiff's late husband), and John MORLEY, the defendant, had a dispute. The former said that the latter went through his land, and that he would "fetch an action" against him for so doing. Afterwards, he heard MORLEY say that he would not again go that way.

 

A paper was handed in by witness, shewing that Mr. MORLEY at that time formally relinquished all claim to the right.—Mr. COURTENAY objected to it.

 

John GRAHAM was servant with James BLACKLOCK, from Whitsuntide to Martinmas, 1823, and then the Low-Common was fenced between the field and the road. He never saw any one cross it; must have seen, if any one had crossed.

 

This was the plaintiff's case.

 

 

[to be continued]